It is within the constitutional power of Congress to extend copyright protection to photographs that are a representation of an author's original intellectual conceptions. Circuit Court for the Southern District of New York affirmed.

Contents

The subject of the lawsuit: Oscar Wilde No. 18 by Napoleon Sarony (1882)

Famed photographer Napoleon Sarony filed a copyright infringementsuit against the Burrow-Giles Lithographic Company, which had marketed unauthorized lithographs of Sarony's photograph of writer Oscar Wilde, entitled "Oscar Wilde No. 18." The company argued that photographs could not qualify as "writings" or as the production of an "author", in the language of the grant of power to Congress under article I, section 8, clause 8 of the United States Constitution to protect copyrights, and so § 4952 of the Copyright Act of 1870, which explicitly extended protection to photographs, was unconstitutional. The federal trial court for the Southern District of New York, though expressing some doubt over the constitutionality of § 4952, declined to invalidate it and awarded a $610 judgment to Sarony (the equivalent of just over $12,000 in 2005). The judgment was affirmed by the U.S. Circuit Court for the Southern District of New York, and subsequently by the Supreme Court.

Regarding the interpretation of "writings" in the Constitution, JusticeMiller's unanimous opinion for the Supreme Court wrote that Congress has "properly declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression." The Court noted that "maps and charts" were among the subjects of the first Copyright Act of 1790, and that etchings and engravings were added when it was first amended in 1802. The members of Congress that passed these first copyright acts were contemporaries of the Framers of the Constitution, and many of them attended the Constitutional Convention itself. As such, their interpretation of the Constitution, Justice Miller wrote, "is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive."

Even if other visual works could be copyrighted, Burrow-Giles argued, photography was merely a mechanical process rather than an art, and could not embody an author's "idea". The Court accepted that this may be true of "ordinary" photographs, but this was not in the case of Sarony's image of Wilde. The trial court had found that Sarony had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art" over which the Constitution intended Congress to grant him exclusive rights.